Peo v. Padilla

11CA1918 Peo v Padilla 12-12-2013

COLORADO COURT OF APPEALS

Court of Appeals No. 11CA1918
City and County of Denver District Court No. 05CR4119
Honorable Christina M. Habas, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Javier L. Padilla,

Defendant-Appellant.

ORDER AFFIRMED

Division V
Opinion by JUDGE RICHMAN
Graham and Navarro, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(f)
Announced December 12, 2013

John W. Suthers, Attorney General, John J. Fuerst III, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Thomas K. Carberry, Denver, Colorado, for Defendant-Appellant
Defendant, Javier L. Padilla, appeals the trial court’s order

denying his postconviction motion filed under Crim P. 35(a) and (b)

challenging the constitutionality of his sentence. We affirm.

I. Background

Insofar as it is pertinent to this appeal, defendant was charged

with and tried on numerous counts relating to a shooting incident

in which three people were injured. Following a jury trial, the trial

court merged two convictions for extreme indifference assault into

two convictions for first degree assault with a deadly weapon, and

entered a judgment of conviction against defendant on three counts

of attempted first degree murder (extreme indifference) and two

counts of first degree assault with a deadly weapon, together with

several counts of crime of violence enhancers. The court imposed

consecutive sentences on all counts.

On direct appeal defendant challenged the assault convictions

on the grounds that the verdict forms were fatally ambiguous.

The division rejected his argument, noting that:

The original draft of the forms mistakenly
referred to attempted first degree assault. The
court noticed this mistake and tried to correct
it by removing the word “attempt” from the
forms. However, on three of the four forms the

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court failed to remove all the language that
referred to attempt. The jury returned guilty
verdicts on all four forms.

Although the division concluded that the forms were ambiguous, it

affirmed the conviction because the record showed that the jury

intended to find defendant guilty of first degree assault.

On direct appeal defendant also argued that because the

convictions for first degree assault and attempted murder (extreme

indifference) were based on the same conduct, the convictions

violate the prohibition against double jeopardy. The division

rejected this argument. Defendant did not argue on direct appeal

that the convictions for the assaults and attempted murder violated

double jeopardy because they were based on identical evidence.

The Colorado Supreme Court denied certiorari review on

February 16, 2010, and the mandate issued on March 19, 2010.

Defendant timely filed his combined Rule 35(a) and (b) motion. The

trial court denied the motion, which we conclude here was actually

a Rule 35(c) motion, without a hearing.

II. Applicable Law and Standard of Review

“A court must hold an evidentiary hearing on a Crim. P. 35(c)

motion unless the motion, the files, and the record clearly establish

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that the allegations in the motion lack merit and do not entitle the

defendant to relief.” Kazadi v. People, 2012 CO 73, ¶ 17.

We review a district court’s summary denial of a motion for

postconviction relief de novo. See People v. Gardner, 250 P.3d

1262, 1266 (Colo. App. 2010).

III. Analysis

In his postconviction motion and on appeal defendant

contends that the trial court (1) violated his due process rights by

imposing ten-year consecutive sentences on the assault convictions

because the jury found defendant guilty only of “attempted” first

degree assault, rather than first degree assault, and erred by

imposing a sentence for assault inconsistent with its stated

objective at the sentencing hearing; and did not rule on the issue in

denying his combined Rule 35(a) and (b) motion; and (2) violated his

rights against double jeopardy by imposing separate and

consecutive sentences for the convictions for first degree assault

and attempted murder (extreme indifference) because they were

based on identical evidence.

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A. Defendant’s Motion is a Rule 35(c) motion

The People assert that while styled a Rule 35 (a) and (b)

motion, defendant’s motion is properly considered under Rule 35(c).

We address the People’s procedural argument before addressing, if

necessary, the merits of the trial court’s ruling. See People v.

Wenzinger, 155 P.3d 415, 419 (Colo. App. 2006).

As a threshold matter, we determine that defendant’s motion

is, in fact, a Rule 35(c) motion. Defendant’s first and second issues

contend that he was sentenced in violation of the due process and

double jeopardy provisions of the state and federal constitutions.

Such contentions fall within Rule 35(c)(2)(I) (“That the . . . sentence

imposed [was] in violation of the Constitution or laws of the United

States or the constitution or the laws of this state.”). The

contentions do not fall within the purview of subsection (a) which

provides that “[t]he court may correct a sentence that was not

authorized by law or that was imposed without jurisdiction at any

time and may correct a sentence imposed in an illegal manner

within the time provided herein for the reduction of sentence.”

Crim. P. 35(a). They also do not fall within subsection (b) which

provides that the court can reduce a sentence provided a timely

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motion is filed. Because defendant alleged a violation of

constitutional rights under the due process clauses and double

jeopardy protections of the federal and state constitutions, he failed

to state a claim that his sentence was “not authorized by law” or

“imposed without jurisdiction.” Wenzinger, 155 P.3d at 419.

Defendant argues for the first time in his reply brief that Rule

35 is ambiguous and must be construed in his favor. We do not

address arguments raised for the first time in a reply brief. People

v. Czemerynski, 786 P.2d 1100, 1107 (Colo. 1990).

B. Successive Claims

The People contend that all of defendant’s claims should be

rejected as successive, because they were previously litigated on

direct appeal, or could have been litigated. We agree.

Crim. P. 35(c)(3)(VI) provides, “[t]he court shall deny any claim

that was raised and resolved in in a prior appeal or postconviction

proceeding on behalf of the same defendant [except in situations

not relevant here].”

Crim. P. 35(c)(3)(VII) states that a court “shall deny any claim

that could have been presented in an appeal previously brought or

postconviction proceeding previously brought [subject to exceptions

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not applicable here].” “Once a claim has been raised and disposed

of on appeal, it cannot be raised again in a later Crim. P. 35

motion.” People v. Davis, 759 P.2d 742, 746 (Colo. Ct. App. 1988)

(citing People v. Johnson, 638 P.2d 61 (Colo. 1981)). “[F]ailure to

include all grounds for relief in the first motion will ‘ordinarily result

in a second application containing such grounds being summarily

denied.’” People v. Tolbert, 216 P.3d 1, 7 (Colo. App. 2007) (quoting

People v. Scheer, 184 Colo. 15, 20, 518 P.2d 833, 835 (1974)).

C. Due Process Claims

In defendant’s direct appeal, he challenged his assault

convictions on the ground that the verdict forms were fatally

ambiguous and that defendant was found guilty only of attempted

first degree assault, not of first degree assault. The division rejected

his argument because the jury’s intended meaning could be

ascertained by reference to the record. See People v. Martin, 851

P.2d 186, 188 (Colo. App. 1992). As described above, the division

specifically addressed the inclusion of the word “attempted” and

determined that the inconsistencies in the verdict forms rendered

them ambiguous. However, it concluded that the record showed

that the jury intended to find defendant guilty of first degree assault

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on all four counts, the verdict forms were not void, and affirmed the

first degree assault convictions. The first claim in defendant’s

postconviction motion was raised and decided in his direct appeal.

Because the convictions for assault were correctly entered, the

trial court did not sentence defendant “inconsistent” with its stated

intentions. In his reply, defendant concedes that the “[f]irst degree

assault carries a minimum mandatory sentence of 10 years in

prison.” That is the sentence that was imposed by the trial court.

D. Double Jeopardy

Similarly, the second claim raised by defendant was raised

and decided, or could have been raised, in his direct appeal. In his

direct appeal, defendant argued that the convictions for first degree

assault and attempted murder (extreme indifference) violated

double jeopardy because they were based on the “same conduct.”

The previous division rejected defendant’s contention because “the

legislature may authorize multiple punishments based on the same

criminal conduct if each offense requires proof of a fact which the

other does not.”

In his postconviction motion, defendant now asserts that the

consecutive sentences for the convictions for first degree assault

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and attempted murder (extreme indifference) violate double

jeopardy because they were based on “identical evidence.” We view

this contention solely as a constitutional argument because the

postconviction motion did not assert that the consecutive sentences

violate section 18-1-408(3), C.R.S. 2013.1 Notwithstanding the

difference in wording, this argument is either the same as the one

rejected by the division on direct appeal, or is one that could have

been raised on direct appeal. Accordingly, since it was not

presented in that proceeding, it is barred. See Crim. P. 35(c)(3)(VII);

People v. Banks, 924 P.2d 1161, 1163-64 (Colo. App. 1996) (citing

People v. Rodriguez, 914 P.2d 230 (Colo. 1996)).

III. Conclusion

The order is affirmed.

JUDGE GRAHAM and JUDGE NAVARRO concur.

1 Section 18-1-408(3) requires concurrent sentences when

convictions for two or more offenses are supported by identical
evidence.

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